The House of Lords ties itself in noble knots over the NHS bill

Jos Bell covers the latest developments in the House of Lords with her NHS bill sketch.

At 3.37 pm on Wednesday November 2nd 2011, following a nod from the be-robed House of Lords duty clerk, and a prayer-signing (who knew?!) with campaigners in the splendour of the Royal Gallery, Lord Kennedy of Southwark rose from his seat on the noble opposition benches:

“My Lords, I beg leave to present a petition from Lewisham Save Our NHS. The petition prays that the House will recognise the clear present and future danger of the health and social care bill 2011 to the health and well-being of the people and that the bill be withdrawn from further consideration forthwith.”

Murmurs of approval accompanied his presentation, and acknowledging smiles were sent up to we campaign representatives in the SE wing balcony opposite.

A total of 5,110 signatures opposing the bill had been obtained from the streets and public spaces of Lewisham and this was the culmination

During all the hours of canvassing we had not anticipated that the sheets of signatures would be entered into Hansard, particularly not immediately prior to an historic piece of ennobled discourse.

For it was directly afterwards, after months of fighting and wrangling over the substance, detail, structure and function of the health and social care bill in its curve ball through the Commons and thence into the Lords, that, for the first time, a point of opposing impasse was reached.

It is well known, even now amongst many members of the public, to whom this forest of Narnia bill is largely an impenetrable mystery, that secretary of state Lansley has done all he can to abdicate ‘the duty of the secretary of state for health to secure the provision of services under Section 1 of the NHS Act’ placing instead those duties on clinical commissioning groups and Monitor.

This is specific to four clauses – namely 1, 4 (the autonomy clause) and clause 10, and also linking into clause 20. So where exactly – as Lord McKay later said – ‘does the buck stop’? If not the SoS then who will ultimately bear responsibility for maintaining a health service free at the point of need for all?

To ignore this, would, as Baroness Williams said ‘leave us in a world of deep twilight uncertainty’ for Lansley has serially failed to acknowledge that this will also result in a danger to provision in areas where the infrastructure fails – or indeed in the management of national emergencies.

Just for reference, this was the second day of this particular committee stage (and this means a ‘committee’ of all Lords in the whole chamber ) – to debate the third amendment of Clause 1 – and bear in mind there are hundreds and hundreds of amendments with a mere ten day Committee allocation.

Also bear in mind that even in anger, the Lords never speak quickly. Voices are ever measured – only by subtle changes in expression and body language are we to deduce this legislative roller coaster impact upon our nobles.

Firstly, to Clause 1: Baroness Shirley, whose voice, since her tarnished pearly queen non-vote on the second reading could rightly be met with no little scepticism, set as it is amidst the remaining Liberal Democrat’s en-mass (bar two) support for the Bill, rose to deliver a master class speech in double diplomacy.

Acknowledging an amendment put forward jointly by ‘Noble Baronesses, Lady Jay and Lady Thornton, the noble Lord, Lord Patel’ and a differing amendment on the same Clause from Lord Mackay, she drove in the double dip below the belt blow to Lansley and his noble spokesman Lord Howe:

‘We believe that it is important to have an absolutely solid basis by which the whole of the House and the public can understand exactly the accountabilities and responsibilities of the Secretary of State. It is therefore of great importance that this House, in this crucial Committee sitting, is able to reach a clear understanding of what those responsibilities and accountabilities are’.

Fellow Lib-Dem Baroness Jolly, following a grilling from the 38 Degrees legal team, later provided the counter-ballast:

‘From these benches, I repeat that we need a reworked clause with completely unambiguous language that will reflect the duties of the Secretary of State for the 21st century and the new NHS that we are trying to forge’.

This push-me-pull-you dialogue demonstrates the conundrum of what is best described as elusive ‘legal ambiguity’ in the drafting of legislation which comprises both reduced centralisation and the issue of the crucial ultimate responsibilities of the Secretary of State.

Fast forward to the Wednesday 10th debate on clause 4 – or the ‘hands off clause’. As Lord Warner described it, ‘complete confusion’, which will invite expensive litigation in potentially fruitless actions against a series of inaction loopholes. It is written as to be very difficult to challenge and potentially solve nothing which is ‘in the interests of the health service’ whilst Lansley shrugs off his ‘unnecessary burdens’.

The current SoS must have believed this was watertight as his best Tupperware, however he had surely not reckoned on the tenacity of noble minds in that other place and the daily emerging fact (a surprise to many of us) as to just how many of the ennobled hail from a range of medical careers.

Not content to be fobbed off with Earl Howe’s silky smooth and erudite reassurances which may not eventually stand up in practice, forensic Lord Patel, having read the whole Bill ‘line by line’, stressed the existence of fundamental omissions, ‘even if they concern only a single word’.

In the Lords, if an issue is brought up in Committee and then voted on and voted down, it cannot come back again on Report or at any other stage of the proceedings on the Bill. As all opposing the bill, and even some supporting it, agreed, this would be disastrous.

It would mean that if any vote were carried, there would be no going back to trying to get broader and stronger agreement on Report and the whole crucial issue would be disappeared.

As matters have progressed over these debates, noble after noble has collectively proposed their amendments on the eventual premise that they were each best withdrawn for later. It may be counter intuitive to most of us to learn that amendments proposed and then withdrawn constitute a victory, but in the convoluted world of the House of Lords this is indeed the case.

If this lack of immediate understanding makes you feel at a disadvantage, think no more of it, for some Lords themselves professed to be on a learning curve. Since then, the ennobled opposers have increasingly emerged as using this knowledge as a fine art –

‘It is an important issue and I give notice that I intend to raise this matter at a later stage. I beg leave to withdraw the amendment’

– stacking up the need for behind the scenes conversation to find ‘ broad areas of agreement’.

More powerfully, we have this week also been made very aware of the role of the constitution committee, chaired by Baroness Jay which has a brief for private sessions to iron out thorny issues – on this occasion the ever present role of the SoS.

By Wednesday 10th, with Clauses 4 and 5 on the agenda, in the forget-statute-jump-the-gun shape of the Lansley ‘hands off’ we find yet another counter-blow.

Opposed to Labour’s inarguable success in reducing maximum waiting times down from 18 months to 18 weeks, we now have Circle taking over Hintchingbrook, in the first of what Lansley clearly hopes will be a series of private sector take-overs of NHS hospitals.

Back to the Lords Chamber. Next Lord Rix with six amendments focusing on the needs of people with learning disabilities and additional conditions (co-morbidities); Lord Beecham adding carers to the pot; the risk posed to supply of disability aids and other necessary support measures via the welfare reform bill.

Covered also were the elderly and the lack of clarity of the relationship between clinical and social care (B. Bakewell); access and provision deficit in rural areas (B. Gibson); the effect of lifting the private patient cap (L. Phillips ); the glaring omission of public health under ‘health’ (B. Murphy); good and speedy access to services being essential to good outcomes (L. Warner)

Finally, we had Baroness Wheeler questioning the government’s objective for patients of “no decision about me without me” and the ‘extent to which patients actually feature in the Bill’.

With that in view we heard much on the subject of the statutory duty of ‘candour’ in the event of medical mistakes and fatalities which in June was recommended by the House of Commons Health Select Committee to be part of the terms of authorisation from Monitor and of licence by the CQC.

As Baroness Finlay observed:

‘Health services are actually a spectrum. You cannot divide the actions of one from another, because they have a knock-on effect’.

In a definite win, following a lengthy discourse relating to Clause 5, Earl Howe ‘at risk of his head on the block’ proposed and unlike so many Lib Dems, accepted, his own research and training amendment.

However he was in return less than willing to support Baroness Wheeler’s appeal for the SoS to honour long standing pay and bargaining arrangements for NHS staff. Yet another amendment held back for later, with leader Baroness Thornton also having a ‘sparkling’ stilleto speech in waiting in the event that his Lordship fails to comply with the majority views.

Thus it is that Lord Freddie Howe has found himself entirely cornered by a skilled triumvirate set of ‘amendment teams’ – none of which have so far entirely perfected the necessary phraseology for avoiding loopholes, but jointly demonstrating that on this point the government has run out of rhetoric – with nowhere to hide, not even from within the Coalition itself.

Thus we now know that the role of the SoS will be worked through in what their Lordships describe as ‘discussions between ourselves outside the Chamber’.

We can then only hope that the results reflect the words expressed by Baroness Andrews, that:

‘the peculiar trust and confidence that is held in the National Health Service in this country and how careful we must be in our processes to honour that expectation and trust, so that clarity on the legal responsibilities and the future of the NHS is absolutely secure’.

Since then, progress has also been made in identifying the nature of GP practice borders on an inner circle postcode standard practice limit and an outer circle limit for the feasible ongoing care of former local patients – nipping in the bud the implausibility of a Hull to Harlow catchment area

So many vital issues to be discussed and agreed upon in so little time to cover what Lord Phillips referred to as a ‘445-page mammoth’.

Perhaps we should leave the final word on three days of debate to the lone voice rebel Lib Dem Baroness Jenny Tonge who continues to appeal for the withdrawal of the Bill:

‘I fear that this Committee stage is going to degenerate into a sort of mad hatter’s tea party… at this rate we will have not a National Health Service but a national health shambles’

As if to press home the point, on the same day, shadow health secretary Andy Burnham’s office released details of his ‘Drop the Bill’ tour and petition. At this rate of Noble knots, it may yet happen.